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The Right to be Forgotten

The English law position on the right to be forgotten is that it falls to be determined following a balancing exercise, weighing the rights of the individual with the rights to freedom of expression, including to access and impart information (NT1 & NT2 v Google LLC). At a European level, it has recently been clarified that the right to be forgotten extends only to publishing within the EU – there is no basis in EU law for global de-listing. Furthermore, two German Constitutional Court decisions (RTBF I and RTBF II) have highlighted the limits to which search engines can rely on journalistic exemptions for data processing, and advocated for a more blended approach to the question of de-listing or removal of information, rather than the CJEU’s approach which starts from the premise that individuals have control over ‘their information’. It’s likely that the CJEU will have to resolve the issue in time. Since the GCC’s preferred ‘blended approach’ bears a strong similarity to the English balancing exercise, that might provide scope for a drastic reappraisal of how right to be forgotten requests should be handled.

John Goss